Court of Appeal for Ontario

Citation: R. v. McFarlane, 2016 ONCA 158

Date: 2016-02-26

Docket: C59243

Before: Sharpe, Benotto and Huscroft JJ.A.

Between:

Her Majesty the Queen Respondent

and

Karlie McFarlane Appellant

Counsel:

Mark Halfyard, for the appellant

Lucas Price, for the respondent

Heard and released orally: February 23, 2016

On appeal from the conviction entered on July 31, 2014 by Justice J.R. Chaffe of the Ontario Court of Justice.

ENDORSEMENT

[1] The appellant appeals his convictions following a trial in the Ontario Court of Justice for possession of cocaine for the purpose of trafficking, possession of ammunition without a license, and possession of proceeds of crime over $5000. He raises two grounds of appeal.

(1) Unreasonable Verdict

[2] The evidence against the appellant was entirely circumstantial. The appellant submits that the convictions were unreasonable and that the evidence led by the Crown was insufficient to establish his possession of the drugs and ammunition in a storage locker or the money found in one of the bedrooms of the condominium apartment he frequented.

[3] We disagree. In our view, there was compelling evidence establishing that the appellant was the occupant of the bedroom in which a very substantial quantity of cash was hidden in several shoe boxes under the bed. The appellant was seen on a regular basis in and around the condominium building and his passport and other personal documents were found in the bedroom. The appellant's driver's license was found in a jacket in the hall of the condominium.

[4] The appellant was carrying a large folded bundle of Canadian currency on his person when he was arrested at the time of the execution of the search warrant.

[5] There was a significant body of evidence from which it could be inferred that the appellant and his co-accused, the owner and other occupant of the apartment, were involved in trafficking drugs from the apartment. In addition to the large quantity of cash found on the appellant and in the bedroom he occupied, surveillance evidence revealed many meetings of short term duration involving either the appellant or the co-accused and other individuals that followed a pattern typical of drug transactions.

[6] The key to the storage locker containing a significant quantity of cocaine and the ammunition was found on a ring with another key to another storage locker assigned to the apartment. The key ring was found in plain view on the kitchen counter of the apartment. Surveillance evidence indicated that the appellant had gone to the basement of the building in the direction of the storage locker in which the drugs and ammunition were found on three or four occasions. The trial judge was entitled to find that the presence of digital scales in the kitchen added something to the overall thrust of the evidence, namely, that the apartment occupied by the appellant was being used as a place from which drugs were being dealt.

[7] Neither the appellant nor his co-accused testified.

[8] In our view, it was open to a reasonable trier of fact, properly instructed and acting judicially, to convict on this evidence. When this evidence is considered as a whole, it was capable of supporting the trial judge's finding that the crown had proved beyond a reasonable doubt that the only reasonable inference was that appellant had possession and control of the cash, drugs, and ammunition

(2) R. v. Bui error

The appellant also argues that the trial judge erred in his assessment of the circumstantial evidence by falling into the error identified by this court in R. v. Bui, 2014 ONCA 614. In that case, the trial judge stated in his reasons:

There are no proven facts upon which I can infer that some imagined person other than the accused, controlled the marijuana grow operation in the accused's house without the accused's knowledge.

[9] As this court explained at para. 24, the error made by the trial judge in that case was "in holding that, when assessing circumstantial evidence, conclusions alternative to the guilt of the accused must arise from 'proven facts'".

[10] The trial judge in this case did not make that error when he stated that the issue for him was whether "the Crown has proven the accused's guilt is the only reasonable inference to be drawn from proven facts". He went on to find that "the evidence as a whole proves possession of the illicit contents of the locker 229 by the two accused is the only reasonable inference from these proven facts". These statements refer to the burden on the Crown and whether, when the evidence was considered as a whole, the Crown had met that burden. At no point did the trial judge make the error identified in R. v. Bui, namely, that the accused could only rely on inferences arising from proven facts in order to avoid conviction.

[11] For these reasons, the appeal is dismissed.

"Robert J. Sharpe J.A."

"M.L. Benotto J.A."

"Grant Huscroft J.A."